Golden Gate University Environmental Law Journal


Part I of this Article provides a brief background on the Yellowstone River Compact and the Montana v. Wyoming litigation. This part further explains the Special Master’s analysis of the CBM issue, as well as the Supreme Court’s recent ruling on improved irrigation efficiency. When viewed together, these decisions provide an important framework for determining how the parties’ regulation of CBM development should proceed. Part II then describes the magnitude of the CBM groundwater pumping issue and asserts that the posture of the Montana v. Wyoming case provides a unique opportunity not only to set Powder River Basin CBM development on the right course for Compact compliance, but also to more broadly right the course for how prior appropriation and CBM development work together in the western states. If this opportunity is not seized, there is great potential for harm to water users throughout the West, some of which may be irreversible and may not be redressed under current state laws. Focusing on the remedy aspect of the litigation, Part III then discusses the steps that the Special Master—or the parties in a settlement process—can take to design a comprehensive CBM regulatory process that upholds the principles of prior appropriation. These steps include invalidating those aspects of the States’ current CBM regulations that fail to comply with the Compact and requiring new, science-based regulatory features that prospectively protect water rights users.

The Article concludes that the Yellowstone River Compact dispute, and like disputes throughout the West, cannot be fully resolved without a new regulatory process for CBM development that prospectively addresses harms to water rights. Ultimately, this interstate dispute provides a rare and critical lens for all prior appropriation states grappling with how to adapt traditional appropriative rights principles to the emerging use of CBM development.